Lowenstein v. Schwallie ( 1941 )

OPINION

BY THE COURT:

The only error urged in argument and brief is that the court refused to give a special charge on the subject of the measure of damage.

The bill of exceptions is not certified as containing all the evidence, and it does not contain the instructions to the jury, although there is a recital that instructions were given. It does set forth the refused charge.

The jury returned a general verdict for the defendant.

Assuming that the refused charge was correct, can it be said that its refusal was prejudicial error?

An examination of the pleadings disposes that the defendant denied that he had assaulted the plaintiff. The answer is a general denial. The bill of exceptions shows that there was evidence to support this denial and to the effect that the injuries from which the plaintiff claimed he was suffering were inflicted in an affray in which he had engaged with another man on another occasion.

In this state of the record, there were two issues to be submitted to the jury: (1) Had the defendant assaulted the plaintiff, and (2) if so, what damage was inflicted.

From the record, we cannot say that the first issue was not submitted without error, and that the jury’s general verdict was not based on that issue. The instruction complained of did not relate to that issue, and would not nave affected the jury’s determination of it. Under such circumstances, the two issue rule applies. We cannot say that the error, if any, was prejudicial. Prejudice, if any, does not affirmatively appear.

For these reasons, the judgment is affirmed.

MATTHEWS, PJ., ROSS & HAMILTON, JJ., concur.